Gaps between the UN-Convention, the SADC protocol and national legal systems in South Africa, Swaziland and Mozambique

An analysis of the new national and sub national Water Laws in Southern Africa: Gaps between the UN-Convention, the SADC protocol and national legal systems in South Africa, Swaziland and Mozambique.

The author would like to acknowledge the valued contributions of ConcaÃ§Ã£o Quadros of the Faculdade Direito, Universidade Eduardo Mondlane, Mozambique, Dr. Serraventose, DirecÃ§Ã£o de Aguas, Ministerio das Obras Publicas e HabitaÃ§Ã£o and Tobias Schmitz, Johannesburg, with whom this project on the law started.

Introduction

Until 20 May 2000, the UN-member countries can sign the text of the UN-Convention on the Law of the Non-Navigational Uses of International Watercourses. The discussion among the member states is mainly on the -lack of- balance in the lawsâ€™ provisions between the rights and obligations of the upstream and downstream countries. The UN-convention is tilted towards lower riparian states, according to some member states, and is not safeguarding the interest of the upper riparian states.

In 1997, both Mozambique and South Africa adopted the resolution on the UN-convention, Swaziland was absent during these elections. Mozambique as a downstream riparian used the UN Convention to make its amendments stronger to the regional SADC- protocol on Shared Watercourse systems. In 1999, Mozambique proposed a new version of the SADC-protocol, mirroring the UN-convention, highlighting the environmental and downstream needs.

The UN Convention provides general principles and rules to guide states in negotiating future agreements on specific watercourses. It looks at management of a river system as a whole and addresses issues such as flood control, water quality, erosion, sedimentation, salt water intrusion and living resources (UN General Assembly, GA/9248).

In the discussions on the international and regional laws, a friction can been observed between existing ways of legally addressing an international river. The two most extreme principles are mentioned as:

The principle of territorial sovereignty of a water course state, (Upstream states have the right to use water resources within its territory disregarding the effects on the downstream countries) and

The principle of territorial integrity of a watercourse, (No riparian state may use the waters of an international river in such a way that the use can have a negative impact on the territory of a downstream state).

In between these, newer viewpoints emerges, such as:

The principle of common jurisdiction of all riparian states over the shared river system, which limits the territorial sovereignty (Upstream use must be approved by a downstream state)

The principle of equitable utilisation by all riparian states, (which permits all use of the water, as long as it is not claimed by others).

At the moment, the approach of limited territorial sovereignty is most widely recognised and is being supported by the principle of equitable utilisation, which means that each party of a treaty is entitled to specific quantities and qualities of the water.

The emerging Water Vision looks at water as a naturally shared resource and at access to it as a human right. It calls for co-operation and interdependence of states, sharing the same river systems (2nd World Water Conference, The Hague, 2000). This Vision involves the complex task of analysing the different needs of water users in each riparian state, as well as joint management of the river systems (Green Cross Int., 2000).

In reality, different combinations of principles are being used serving each local shared watercourse up to their standard of co-operation or conflict avoiding behaviour.

SADC protocol based on the Helsinki Rules

In relation to the Incomati basin, the South Africa Department of Water Affairs already reviewed the Helsinki Rules (1966) twenty years ago (DWAF,1980). These rules were used as the base for the SADC protocol and hold the principle of territorial sovereignty. Especially article 7 is relevant for the South African/Swaziland/Mozambique transboundary issues:

DWAF questioned if the principle is correct that:

"A basin state may not be denied the present reasonable use of the waters of an international drainage basin to reserve for a co-basin state a future use of such waters. (â€¦..) Nothing in the Helsinki Rules prevents South Africaâ€¦.from using an inequitably large share of the water while the less developed states of Swaziland and Mozambique have less need for it."

But the DWAF-rapport continues that:

"However,â€¦.if and when at some future date, additional water is required to meet the legitimate economic and social needs of Swaziland and Mozambique, the continued use of more than an equitable share by South Africa would not be guaranteed" (1980,132).

Therefore the DWAF-report calls for co-operation among the basin states to optimise the use of water resources and for development of a basin-wide long term planning programme, including financial compensation, contribution to the costs of the works or even reduction in the scale of development to ensure equitability.

With this statement, DWAF refers to the principles of equitable use and territorial integrity already in 1980. The new SA-Water Act (1998) is even more clear about it, in chapter 1 is stated that amongst others, the purpose of the Act is meeting international obligations. And its water strategy (chapter 2) is to provide for the requirement of the Reserve (human and environmental needs) and the international rights and obligations.

So the intention to share water is there, even if the South African reality as well as the 11 indicated objectives in its new law, do have conflicting water demands.

The â€˜Ncomati River flows through Swaziland where itsâ€™ water is heavily used for sugarcane irrigation, then it comes back into South Africa as Komati River just before entering Mozambique to join the Incomati River.

Swaziland provided for all sugar water needs even outside the basin for the last 30 years, using Komati water without construction of a storage dam. This was possible because of lacking development cq water needs in the downstream parts of South Africa and Mozambique.

This situation continued until the late nineties when Swaziland was forced to create storage capacity because of increasing demands from South Africa. South Africa shared the costs of construction of the Maguga Dam in exchange for a percentage of water use. Even so South Africa is still faced with the inconvenience of (not) maintaining a minimum flow at the border with Mozambique.

Amendments to the SADC Protocol on Shared Watercourse Systems

The history of amendments to the SADC Protocol shows the Southern African shift in approaches during the nineties. In 1995, South Africa, Mozambique and Swaziland signed the SADC protocol on Shared Watercourse Systems, just like seven other members out of fourteen SADC countries. Whereas the SADC protocol still holds a territorial sovereignty view, as where the UN convention is more a combination with a lot of territorial integrity elements.

However, two years later, in 1997, the member countries also adopted the UN-Convention on the Law of the Non-Navigational Uses of International Watercourses. These two different international laws had to be placed on the same footing.

In 1999, the SADC-protocol was amended and made a historical move from the first principle towards the second (personal communication, Serraventoso, 1999). The Protocol of 1995 did not give any protection for unjust upstream water abstraction, it did not provide for environmental protection of the river and the estuary. Especially the terms and concepts used in the Protocol following the Helsinki Model were not in favour of the downstream countries. When becoming aware of this by adopting the UN- convention in 1997, Mozambique started to formulate its amendments.

In short, the water course should be seen as a whole, and not â€“as in the protocol- as a series of sub-catchments with their own individual management. The environmental protection (and the Reserve) had to be secured and the SADC tribunal should be able to handle the disputes between the member states.

In April 1999 in Mutare, Zimbabwe, the Mozambican amendments were positively considered by the other members of the Technical Delegation, and could be signed in due time. However in March 2000, during the 2nd World Water Forum in The Hague, the SADC-ministers dealing with Water Resources were still discussing the possible changes in the SADC-Protocol. The overall feeling is that it is good to have the signed Protocol, and all concrete arrangements should be filled in at individual river basin level among countries involved. On the other hand, many countries are in the process of updating their national water laws, and it would be good to have them in line with the agreed UN-Convention and the SADC Protocol. And then it would be good to have the amended version of the protocol.

Legal set up in each country

On a larger time scale, political changes in society are to be reflected in the style of governance and the law systems applied. In the Southern African region, the most striking political changes have been the move from colonial minority rule governance to independent majority rule governance. These changes are clearly visible in the South Africa Water Law history. Or as Mike Muller, Director General of DWAF puts it:

"Water Management moved from the pre-colonialist collective realm to become a publicly related resource in terms of Roman-Dutch law, and then, under Anglo-Saxon jurisprudence (â€¦.), was captured as a private resource for the minority (Muller:2000).

Now, the SA Water Actâ€™s first objective is serving the majority of people their basic needs in water and food terms and maintaining the environment.

The South Africa Water Act is the most developed national water law in the SADC region.

Lindstrom (1997) gives six headings and 28 principles in Water Legislation as a standard for comparison between different national legislation; Legal aspects of Water, The Water Cycle, Water Resource Management Priorities, Water Resource Management Approaches, Water Institutions and Water Services. The South African lawmakers adopted these principles. Here we use those standards to compare the legal and institutional set up in the Southern African region (see table 1).

Comparing the national water laws

Legal aspects of Water

Water is a public good, with different connotations

The new South African Water Act considers its Water Resources as a public good, a resource for all, under state control and licensed, whereas in the past water in rivers, groundwater or captured was considered a private good, owned by the landowner.

In Mozambique, the water lawâ€™s history is following the Portuguese Water laws until independence in 1974. In 1991, a new water law was gazetted. It considered all water as a state owned, a public good, and all infrastructure, bridges, dams and canals build by the state (Lei n16/91 art 1). All water resources are to be governed by the state for the benefit of the population. Water is seen as gratis and free for all. Only the large scale users need permits and concessions. The 1991 law has characteristics of a revolutionary time, using the concept of rational use, which implies a set of non-stated values, in freedom fighters language such as:

In Swaziland, all natural resources, including water is owned by the King, which gives a different legal set up, in which traditional chiefs have an important say in the allocation of land and water resources.

No riparian rights

The riparian right to water resources, shaped the water allocations pattern in South Africa during the last decades, but is finished not, no riparian rights are acknowledged, in all three countries. But the past cannot be forgotten over night, as shows in principle 20 where prior investments do not play a role in water allocation in Mozambique and Swaziland, but does play a role in South Africa. The South African private farmers, who owned the land and the water resources in the past, do maintain some rights on water allocations if they have invested in the infrastructure.

Water Resources Management Priorities

Management unit: catchment or river basin?

The law sets the administrative and management unit at catchment level (SA) or at river basin level (Moz, Swazi) Both concepts are not set in legal terms and could differ considerable.

Management for sustainable, social and economic benefits

The Mozambique water law is not explicit on the objectives of Water Management (it mentions â€˜racionalizaÃ§Ã£o de seu usoâ€™, which is a non stated scale of values). The Swazi law only give a mechanism for water quantity and quality control. The South African law gives clear political objectives in terms of sustainability, social and economic benefits.

Priority for human and environmental needs

South Africa and Mozambique give explicit priority to human consumption and sanitation and environmental needs, where as in the proposed Swazi law, this is not stated.

International co-operation within Shared River basins

The three national laws underline, the need for international co-operation within shared basins. Mozambique expresses its need for joint research and construction of Infrastructure, with the upstream neighbours, whereas South Africa and Swaziland give consideration to downstream development. There is no outspoken statement on how to manage shared river flows; which set of sub-national rules to be applied or which conflict resolution mechanism should be used.

Water Resources Management Approaches

Role of the State

In the South African law, the national government is responsible and ensures implementation of all stated objectives, whereas in the Mozambican law, the government is responsible and implements all objectives herself. In Swaziland, the proposed Water Authorities will be responsible and regulator of water allocation and control. There are no obligations to implement objectives.

Integrated Management of Water Resources

The South African law and Mozambican law mention integrated management of water resources, the Swazi law not.

Pollution control and protection of the Environment

In principle, the national laws provide for protection of the environment, in more or less outspoken terms. All three laws underline the principle of Polluter Pays, but the law is not clear about monitoring mechanism.

Decentralisation tendency towards river basin authorities

Much attention is given to spell out the rules for allocation and management of the resource, in Swaziland, this is proposed to be the duty of the Water Board. Only in South Africa, the law takes in account the prior investments made, when allocating water.

Protection from upstream use

The South African law offers protection from upstream use. It states that development and management should be carried out in a manner that limits the danger to life and property due to natural and manmade disasters. Swaziland and Mozambique do not have this element in their laws.

Water Institutions

Limited participation of poor people, cost recovering

An institutional set up for decentralisation is given in all three national laws, participation of stakeholders is mentioned as well, however the majority of the population, being the small (subsistence) farming communities is being presented in the (proposed) water councils, only through users organisations and local -government. Both are weak or not existing, compared to the large scale farming community (Sugar) and the other sectors. Cost recovering is actual in South Africa, and at a very low rate in amendments of the Mocambican law, proposed in Swaziland.

Water Services

A civil right with cost recovering?

Whereas access to basic water services are mentioned a civil right in the South African Law, in the Mozambican law it is called a priority and in the Swazi law no rights as such are mentioned.

The Water Services are to be in line with local government regulations and the South Africa law regulates full cost recovering for the water services. In the regulations of the Mozambican Act (Diploma Ministeria no 70/97) a new water tariff was given for non-subsistence use only. In the proposed Swazi law, cost recovering has been stated as part of Water Board responsibility

Protection from monopolies

In South African law, protection in case of water monopolies is offered. In the Mozambican law, the state keeps the monopoly on water services (this has been privatised in five cities since 1999). No protection is offered in the Swazi law.

Conclusions

Similarities and differences between the Water Laws

Based on the analysis of table 1, we conclude that on four major points, the national laws differ considerably:

Management unit: The definition of the management unit (catchment in the SA law, and river basin in the Moz, and Swazi law) is a potential problem for co-operation within a shared river basin such as the Incomati. Both terms are not legally specified, and could mean complete different units, such as the entire river drainage basin, or just the drainage area of a subriver. The SADC-Protocol takes the water course as unit, which does not fit in either national definition.

Role of the state: Whereas there are similar trends towards decentralisation and cost recovering in the three laws, there are still many differences, especially between the Swazilaw on one side and the South African and Mozambican law on the other side. The history and state of the water laws differ considerably. As we have seen, the South African water law makes the shift from private to public resource whereas the Mozambican law is still strict on state ownership and state implementation. The Mozambican reality however, is moving towards more private initiative and non governmental organisations are taken over the implementing role as the state proved to be a weak state, not able to deliver the basic water services. In Swaziland a whole different ballgame is played, with the King and the traditional chiefs strongly involved in ownership, responsibility, management and implementation of water resources and without clear rights for the water users.

Participation: Stakeholders participation is institutionally arranged for in the SA law and in the proposed Mozambican law, however the majority of the population, being the small (subsistence) farming communities will be presented in the (proposed) water councils, through users organisations and local -government. In the Incomati basin, both are weak or not existing, compared to the large water users in the basin (Sugar companies, and other large farmers) and sectors such as Electricity Companies. This unequal balance in the stakeholder participation is not addressed in the laws. Cost recovering is actual in the South African law, but not yet fully implemented, and mentioned in amendments of the Mozambican law but not yet fully implemented, and only proposed in Swaziland.

Environment: The protection for the environment and the downstream use is not common, Although the (aquatic) environment is mentioned in all laws, the control and implementation mechanism for protection is missing in all, but the South African law.

In general: In a shared river basin such as the Incomati, the different history and phases of development and the different legal set ups, shape the reality of unequal water allocation in the basin. As such, the laws do not offer an outspoken protection from unequal access to water resources between and within the countries. Nor is there legal protection from further marginalisation of the subsistence farmers by depletion of natural resources in the basin on which they relay. Interbasins transfers of water in the Incomati can and do take place without compensation to the downstream users.

A major gap between the laws and implementation of the laws exists in the river basin. Highly idealistic law and legislation, in the hands of states with little implementing power creates a raw reality without any rules or law to protect the new or small water user and the environment. The conflict resolution procedures are not clearly stated, and it is not clear to the author how the Water tribunal of SADC functions.

Key issues for further research in the Incomati Basin

In the Incomati river basin, investments in water infrastructure have been made on an unequal footing within and between countries. The South African law takes these prior investments in account when allocating water in the catchment. In Mozambique and Swaziland, prior investments in the river basin do not count, this leads to the questions:

How to weight legally existing water uses against proposed water uses in the whole river basin?

Which legal set up can give protection from further marginalisation of the subsistence farmers by depletion of natural resources in the river basin

How can Inter basins transfers of water legally be mitigated or compensated to the downstream users in the Incomati basin?

What conflict resolution procedures are in place in the Incomati river basin and how do they operate (Water tribunal of SADC)?

Linked to the subnational water laws

Are the updates of national water laws in line with the agreed UN-Convention and the (amended) SADC Protocol?

Can the â€˜water courseâ€™ be the legal concept in all three river basin states?

Can the environmental protection be secured with a monitoring mechanism in the whole river basin?

Is the SADC tribunal able to handle the disputes between the member states?

These are the key issues for further research in the legal and institutional set up in the Incomati River basin, formulated from an analyse of the existing laws.

References

DWAF 1980, Water Planning for the Eastern Transvaal, Water Planning Committee for the Eastern Transvaal. Report to the former minister of Water Affairs, S.P. Botha.

DWAF 1998, National Water Act of South Africa

Muller, M. 2000, Transforming Water Law to Achieve South Africaâ€™s Development Vision, A Case Study in National Law. 2nd World Water Forum. The Hague, March, 2000.

Green Cross Int. 2000, National Sovereignty and International Watercourses, 2nd World Water Conference, The Hague.

Green Cross Int. 2000, Water for Peace in the Middle East and Southern Africa,2nd World Water Conference, The Hague.

Leestemaker, J.H. 2000, The Domino Effect, a Downstream Perspective in Water Management in Southern Africa In: Green Cross Int. 2000, Water for Peace in the Middle East and Southern Africa, 2nd World Water Conference, The Hague pp 140-146.

SADC 1995, Protocol on Shared Watercourse systems in the Southern African Development Community Region

SADC 1999, Consolidated Version of the SADC Protocol, containing Original Provisions and Proposed Amendments, with Amendments Highlighted.

UN 1997, Convention on the law of the non-navigational uses of international watercourses

Table 1: Comparison of legal and institutional set-ups in Mozambique, South Africa and Swaziland